Can the Police Search a Person’s Cell Phone After an Arrest Without a Search Warrant

In Florida, the general rule for searches and seizures is that the police cannot search a person, a vehicle, a home or other private property without a valid search warrant. Of course, there are exceptions to this general rule which allow the police to search a person or his/her property without a search warrant in many situations.

One common exception to the search warrant requirement is the search incident to an arrest. When the police arrest a person for a crime in Florida, that police officer can search that person incident to the arrest. There are two primary bases for the search incident to an arrest exception to the search warrant requirement. First, the police officer is allowed to search the person, any container on the person and any container within the person’s immediate reach for officer safety. The police officer has a right to make sure the person being arrested does not have a weapon in his/her possession or within arm’s reach that could be a threat to the officer. The other basis for a search incident to arrest is to protect against the destruction of evidence. For instance, if the police officer arrests someone for a drug crime, the officer has a right to search the person to make sure he/she does not have more drugs or other evidence on him/her that can be thrown away, swallowed or otherwise destroyed.

The search can cover the entire person, his/her clothing and any closed containers on that person. Does that include a person’s cell phone? In other words, can a police officer in Florida search the contents of a person’s cell phone without a search warrant after arresting that person? This can certainly be a significant issue in any criminal case. Cell phones contain pictures, text messages, emails, website histories and phone records which can provide the police with all sorts of evidence in criminal cases. Each person clearly has a significant privacy interest in the contents of his/her cell phone.

In a recent case near Jacksonville, Florida, a guy was arrested for the sale of cocaine. After arresting the suspect, the police officer searched him and found his cell phone. The police officer then searched the cell phone and found text messages relating to the sale of cocaine and phone calls with people involved in the cocaine business. The police officer never obtained a search warrant for the cell phone. The criminal defense lawyer filed a motion to suppress the information found in the cell phone because it was a warrantless search and did not fall within the search incident to an arrest exception. The court agreed with the criminal defense attorney and threw out that evidence. The court reasoned that the two justifications for a search incident to an arrest of a cell phone were inapplicable. There is no officer safety issue with a cell phone as it is not, and would not contain, a weapon. There was also no threat that the suspect would destroy evidence in the cell phone. Once the police officer arrested the suspect, he took custody of his cell phone and handcuffed the suspect. There was no threat of losing any evidence in the cell phone and no reason the police officer could not apply for a search warrant.

Many courts across the country seem to allow the police to search a person’s cell phone after an arrest and without a warrant. They rely generally on the premise that a search incident to an arrest allows the police officer to conduct a full search of the suspect, including any containers on the person. This seems to be a more literal interpretation of the exception without consideration of the bases for the exception.

The bottom line is that there is no certain answer to this question at this point as different courts disagree about a police officer’s right to search a person’s cell phone without a warrant after an arrest. It is probably an issue that will be decided with some level of certainty down the road. In the meantime, we believe that the logical answer based on the purpose for the search incident to arrest exception to the warrant requirement would prevent the police from searching a person’s cell phone without a search warrant after an arrest.

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